Monday, December 26, 2011

Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg

A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years. The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)

The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible." The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights. Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child. There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child. (He changed his mind and tried to get parental rights.) The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born. The court determined that TMH had a constitutionally protected right to be a parent of her child.

The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case. The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.

The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation. But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.

The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child. The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:

Yes, I know, as did the able trial judge, that the best
interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think
that it should be. In my view it would be wrong to deprive the child of the benefits -
emotional, monetary and supportive - of the relationship to which that child
should be entitled with both the appellant and the appellee. Both of the adult women in
this case are parents to K.T.-H. in the real sense of the term. I think that we need to
find a way to redirect our focus in cases of this kind so that best interests becomes part of
the decisional matrix.

The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.

I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one. That's true, when a child has actually had two functional parents. I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent. Plenty of lesbians have children as single parents. Their family structure also needs to be protected.

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.